Ten Myths About DUI

Professional Advice from a Reno DUI Attorney

1. I have to be driving in order to be convicted of Driving Under the Influence
in the State of Nevada

Actually, no. Driving is not required. All that is needed is that you are
in “actual physical control” while having a prohibited concentration
of alcohol in your blood or breath. That means that if you get behind
the wheel of your vehicle, and decide that you have had too much to drink,
your decision to “sleep it off” in your car may lead to a
conviction of the offense anyway,
just as if you had decided to take a chance and drive home. It is immaterial that you felt as if you were doing the prudent thing.

TIP: If you have to sleep it off in your vehicle, it is better if you sleep
in the back seat, or the passenger seat, and do not put the key in the
ignition. This is not really recommended, however, as prosecutors may
still argue that you had the ability to start the vehicle and drive away.
Call a cab whenever you are unsafe to drive.

2. If I am stopped by a police officer, I have the right to consult with
a lawyer to determine whether to answer his questions, or to decide whether
submit to a blood or breath test.

Your constitutional right to speak with an attorney doesn’t allow
you to consult with one before deciding whether to remain silent, or before
deciding whether to submit to an evidentiary test of your blood or breath.
It is only
after you answer the officer’s question, and
after you submit to the testing, that you can call a lawyer to determine what you
should have done.

TIP: Although you are generally expected to answer a police officer’s
legitimate “identity” type questions, you should not admit
to having consumed any alcohol or any controlled substances. By doing
so, especially with the controlled substances, you may be admitting to
a felony. When in doubt, don’t talk. You should only agree to take
tests that are required by law. Don’t volunteer to take any tests
that are not required. Ask if the test is required.

3. I have to be intoxicated, or “under the influence” in order
to be convicted of Driving Under the Influence.

Your driving patterns, your ability or inability to safely operate your
vehicle, and indeed, your intoxication, or lack of intoxication, are often
irrelevant. While some drivers are convicted of Driving Under the Influence
because of their poor driving, the overwhelming majority are not what
we would normally call “intoxicated.” In fact, most drivers
are convicted not because they are operating a vehicle while they are
intoxicated, but rather because the evidentiary test of their blood or
breath indicates a Blood Alcohol Concentration (BAC) above the legal limit,
which is now 0.08 BAC.

4. In order to be convicted of Driving Under the Influence, it is necessary
to prove that I was driving at the time that my blood or breath was over
the limit.Thanks to aggressive lobbying, the national advocacy organization Mothers
Against Drunk Driving (MADD) was able to force the enactment of legislation
in Nevada which allows the prosecution and conviction of drivers whose
blood tests over the legal limit
not only at the time they were driving, but also for a period of up to
two hours after driving. In other words, it is immaterial that your blood contained sufficient
alcohol at the time you were operating a vehicle, so long as it tested
above the limit later.

5. I have the right to refuse a test of my blood or breath, even if the
officer tells me to submit to one.Years ago, it was possible to refuse to submit to a blood or breath test,
without very much fallout. Today, however, should you refuse to submit
to a “preliminary” test of your breath, the officer is permitted
to arrest you, if he has “reasonable grounds” to do so, and
to force you to take an evidentiary test of your blood or breath. If you
are asked to submit to an “evidentiary” test of your breath
or blood, and you refuse, the officer can use reasonable force to compel
you to take the test.

TIP: Cooperate, but don’t volunteer to take tests. Your refusal to take
a test may result in your being charged with an additional charge of obstructing
or resisting an officer. Be polite, and if told that you have to submit
to a test, then submit to it and fight about it later, in court.

If you have been charged with a DUI call my law offices today at (775) 329-1101
to access the best possible Reno based representation.

6. If I want to fight my case, I can force the prosecutor to prove my guilt
to a jury of my peers.

The constitutional right to a jury trial does not compel a court to order
one in misdemeanor cases. Since most DUI offenses are misdemeanors, this
effectively means that it is extremely unlikely you will get such a jury
trial. Instead, you will appear before a Justice of the Peace, or a Municipal
Court Judge who has “heard it all.” Sometimes, in certain
communities in Nevada, the Justice of Peace is not even trained in the
law, yet he or she will be deciding your case.

7. If I am convicted of Driving Under the Influence, and I lose my driver’s
license, I can get a restricted license.

Yes, and no. It is not necessary to be convicted of DUI in order to have
your driver’s license revoked for a period of time, 90 days on the
first offense. The Nevada Department of Motor Vehicles (DMV) can, and
does, revoke driver’s licenses without requiring a court conviction
of an offense of Driving Under the Influence. In fact, should your blood
or breath test over the 0.08 BAC,
your license will be automatically revoked for 90 days, without your appearing
in any court or administrative hearing.

Even if you are acquitted of DUI in the Justice Court or Municipal Court,
your license revocation may still stand, since the procedures and rules
of the DMV operate independently of the court system. Further, a restricted
license is only available when ½ of the revocation period has been
served, which means that any such restricted license would only be available after
45 days of buses, bikes, and bumming rides had elapsed.

TIP: By challenging a license revocation with the DMV, you can control just
when your license will be revoked, rather than when the DMV or the arresting
officer says it will happen. Also, some officers do not show up at the
administrative hearing, and you win by default. As Woody Allen says, “Half
of winning is just showing up.”

8. Even if I am convicted of Driving Under the Influence, because of my
excellent driving record, I will probably get probation, and not have
to go to jail or do community service.

Your excellent driving record means diddly when it comes to sentencing
on DUI offenses. No probation is possible, and every person who is convicted
of such an offense must serve
at least 2 days in jail, or must perform
at least 48 hours of community service. No exceptions, unless you agree to enter a long and costly alcohol rehabilitation
program. These are the minimum jail and community service penalties for
a first offense. The actual penalties can be much higher.

TIP: Your agreement to enter an outpatient educational or treatment program
may reduce the mandatory periods of both jail time and community service.

9. If I am stopped and arrested for Driving Under the Influence, I am as
good as convicted.

Despite the attitude of many courts and prosecutors, there are defenses
to the crime which should be raised by you. Sadly, there are law enforcement
officers who are not above coloring the truth and are willing to do so.
Also, many officers who investigate DUI cases are not qualified to administer
the sobriety tests, and they make serious mistakes in so doing. Remember
this: If you plead guilty, you have a 100% chance of being found guilty.
If, however, you are willing to fight for your rights, and to contest
the prosecution’s case, you will have the best chance of a satisfactory outcome.

TIP: Pleading Not Guilty at the Arraignment does not mean that you cannot change
your mind later. For this reason, do not plead guilty until you are satisfied
that nothing can be done to improve your legal position. Your attorney
will know how to advise you.

10. I can defend myself effectively in this kind of case, if I just let
the judge know the facts.

If you have a headache, it is perfectly acceptable to take an aspirin or
two. Similarly, a small cut may heal perfectly well without doing anything
to remedy it. If your appendix bursts, however, you need to consult an
expert, and no one would suggest that you should personally attempt to
remove that appendix. If you are arrested for Driving Under the Influence,
you need professional help to get past the many pitfalls and adverse consequences.
You need a competent lawyer, one who is experienced in the defense of
Driving Under the Influence cases, and who is well versed on the law and
facts regarding these offenses. Your investment in such representation
is essential.

TIP: Hire the best attorney you can afford, one with depth of knowledge and
experience in defending other drinking drivers.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.